The New Jersey sports betting crusade is at a critical point. Yesterday, its arguments were reheard in the Third Circuit Court of Appeals, as the state made its latest, and possibly final, case to be allowed to offer sports betting within its borders.
We’ve been here before, and many times New Jersey has been knocked back in the law courts. In 2012 and 2014, injunctions were placed against the state’s sports betting ambitions, and twice appellate decisions have gone against it. But the very fact that yesterday’s hearing happened at all gives the state some cause for hope.
Rehearings of the Third District are extremely rare, so the fact that this one was granted at all suggests that New Jersey has at least some support among the judiciary.
“En banc” hearings, where a case is heard before all the judges in a court, rather than just a selected panel, are even rarer. New Jersey’s job yesterday was to convince a majority of those 12 judges, a task many feel may be in the “uphill” category.
To Authorize or Not to Authorize
The case is not a simple one, and at its heart lies the question of whether, by permitting sports betting at its racetracks and casinos, New Jersey would be “authorizing” sports betting.
The authorization of sports betting is prohibited by the Professional and Amateur Sports Protection Act (PASPA), a piece of legislation from 1992 that sought to define the legal status of sports betting (as opposed to parimutuel horse and dog racing) and ultimately prohibited it nationwide.
But New Jersey, represented by former solicitor general Ted Olsen, argued yesterday that the state has no intention of “authorizing” sports betting. In one of those language twists that only lawyers can really make sense of, the state says it simply proposes to “not authorize” PASPA. To most of us, it sounds like the same thing. Isn’t authorizing something the same as repealing a law that prohibits it?
Tantamount to Licensing?
According to Olsen, it isn’t. “When the state is taking laws off the books and not taking a position one way or the other with respect to whether an activity can occur, that is not authorization,” he declared.
But according to Paul Clement, arguing on behalf of the leagues, it is the same thing.
Furthermore, suggested Clement, the partial repealing of PASPA, namely, limiting sports betting to the racetracks and casinos, is tantamount to licensing it. To paraphrase Clement, if you are not going to enforce a law, shouldn’t you not enforce it everywhere, rather than just at selected venues?
New Jersey also argued that PASPA is contrary to the concept of “equal sovereignty,” in which each state should be treated equally, although this concept is not enshrined in the Constitution.
The hearing lasted an hour. And now, the state will await the judges’ decision, a process which is likely to take months.
In the meantime, New Jersey’s longstanding fight to offer sports betting hangs very much in the balance.